R v Youkhana

[2004] NSWCCA 87

CITATION:	R v Youkhana [2004] NSWCCA 87
HEARING DATE(S):	24 March 2004
JUDGMENT DATE:	6 April 2004
JUDGMENT OF:	Studdert J at 1; James J at 35; Dunford J at 36
DECISION:	Appeal against conviction on count 4 upheld; conviction and sentence relating thereto quashed; new trial ordered in relation to count 4.
LEGISLATION CITED:	Criminal Appeal Act, s 6
CASES CITED:	R v Tangye (1997) 92 A Crim R 545
PARTIES :	Regina v John Youkhana
FILE NUMBER(S):	CCA 60455/03
COUNSEL:	E. Wilkins (Crown) R. Hulme SC (Appellant)
SOLICITORS:	S. Kavanagh (Crown) S. O'Connor (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0706
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ

60455/03

STUDDERT J
JAMES J
DUNFORD J

Tuesday 6 April 2004

REGINA v JOHN YOUKHANA

Judgment

1 STUDDERT J: The appellant, John Youkhana, stood trial in the District Court before his Honour Judge Sorby and jury in December 2002 following the presentation of an indictment containing seven counts:

° Count 1 charged him with affray;

° Count 2 charged him with maliciously inflicting grievous bodily harm;

° Count 3 was an alternative count to Count 2, charging him with assault;

° Count 4 charged him with maliciously inflicting grievous bodily harm upon a police officer acting in the execution of his duty;

° Count 5 was an alternative count to Count 4, charging him with an assault upon that police officer;

° Count 6 charged him with resisting a police officer in the execution of his duty;

° Count 7 charged him with escaping lawful custody.

2 On 12 December 2002 the jury found the appellant guilty on counts 1, 2, 4, 6 and 7. Verdicts were not taken in respect of counts, 3 and 5, since they were alternative counts to counts 2 and 4.

3 The appellant appeals in respect of his conviction in relation to count 4 only.

4 Before considering the grounds of appeal, I propose to outline the Crown case.

5 The offences in respect of which the appellant was convicted occurred at Central railway station on 19 September 2001. The appellant was one of five men who were standing in the vestibule area of a carriage of a Liverpool-bound train at about 5.20 pm. The train was stationary at the platform. A passenger named Donald Murphy boarded the train but the men blocked access to the compartments. According to Mr Murphy, it was the appellant who said: “Don’t get on the train, fuck off.” He described the men as “seeming to be pretty agitated and…like they were just looking for a fight or something.” Mr Murphy, having entered the train, walked to the opposite side of the vestibule and another of the group asked him: “Do you want a punch in the head?” Mr Murphy then left the train and sought the assistance of State Rail employees. The facts thus far summarised relate to the affray count.

6 Having left the train, Mr Murphy spoke to a guard and there were a number of railway personnel who became involved. Andrew Egan, whose position was that of Operations Superintendent, came and spoke to the group of five and, in short, told them to leave the train voluntarily or they would be forcibly removed. The men left the train and, on the prosecution case, and the jury accepted that this is what occurred, the appellant then struck Mr Murphy in the face. He sustained serious dental injuries. This criminal conduct on the part of the appellant was the subject of count 2, and there is no challenge to the jury’s verdict of guilty to that count.

7 Senior Constable Gordon was a police officer who was off duty and on his way home from work. He happened to be on the train platform and saw the appellant strike Mr Murphy. Constable Gordon approached the appellant and grabbed him around the neck from behind. He informed the appellant that he was a police officer and he also informed the appellant that he was under arrest. The appellant struggled and whilst he was struggling the police officer was struck on the side of the face and fell to the ground semi-conscious. He did not have a clear recollection after that until he was helped to his feet by a guard and taken to the guard’s office. Constable Gordon suffered a fractured maxillary sinus and the severance of a nerve within his cheek. He was conscious that his nose was bleeding, that his lip was lacerated and that his cheek was cut. The attack upon Constable Gordon is the subject of count 4.

8 There was evidence that the police officer was further assaulted whilst he was on the ground semi-conscious. In particular, there was the evidence of a railway employee, Mr Bonaddio. He said that he observed the struggle between the police officer and the appellant. The police officer had the appellant in a headlock and then he saw four other youths that

“sort of bowled him over, knocked him over… He was tackled to the ground and then there was just arms and legs going everywhere. This man was on the ground being assaulted… I didn’t see a specific blow to his face or body but there was a lot of kicks being thrown.”

He said that the man that had punched (Mr Murphy) “was involved in that…” (T 71).

9 Then, further, in examination in chief of Mr Bonaddio, these questions and answers appear (T 72):

“Q. You’ve described what happened on the second incident didn’t you, told us about the man grabbing the other man in the headlock?
A. Yes.
Q. Then you say four other people came and there was an incident involving the five men and the man on the ground is that right?
A. Yep.
Q. What happened after that?
A. Then the group of men ran straight down those inner stairs which lead to the country concourse.”

10 Mr Bonaddio, in cross examination, gave further evidence in point (T 74-75):

“Q. When you were talking about what my friend’s described as the second incident where the man in the white T shirt had jumped on someone’s back, you said that all four of the others came back and bowled him over?
A. Yes.
Q. You saw that clearly, did you?
A. I did.
Q. You saw him being assaulted clearly?
A. I didn’t see him get punched in the mouth, because he complained of a jaw injury, I didn’t see that punch to the mouth but I saw a lot of kicks. But I didn’t see a specific blow that would have injured his jaw.
Q. But you say you saw him being kicked?
A. Yes.
Q. You say it’s by all four of the other people, you’ve got no doubt about it?
A. They were all involved.”

11 The appellant, having broken free from Constable Gordon, fled from the scene with his companions.

12 For the purposes of this appeal, there has been no challenge to the evidence that identified the appellant as one of the group of five and as the person who struck Mr Murphy. The only issue that arises on the appeal concerns his liability for the harm occasioned to Constable Gordon.

13 This brings me to the grounds of appeal.

Ground 1: The learned trial judge erred in holding there was a case to go to the jury in respect of count 4 (and count 5)

Ground 2: The verdict of guilty in respect of count 4 is unreasonable and cannot be supported having regard to the evidence

14 At the conclusion of the Crown case, it was submitted that there was no case to go to the jury on the two counts in question since it was acknowledged that the blow sustained by the police officer whilst he was struggling to arrest the appellant was not struck by the appellant but by somebody else. In rejecting the application made on behalf of the appellant, the trial judge ruled in these words:

“It’s close Mr Crown, I must say. It’s very close Mr Hogan, but I’m against you, I’ll give my reasons again if you wish. It just seems to me there’s sufficient there, a joint criminal enterprise. There’s an arrangement or understanding could be formed almost instantaneously to do something. On this occasion they did that, that was to free the accused from the grip of Senior Constable Gordon by way…or kicks [sic].”

15 Although the reasons for the ruling given were not fully exposed, as I understand it his Honour considered there was a case to go to the jury on count 4 on the basis that it was open to the jury to find that whoever struck Constable Gordon did so in furtherance of a joint criminal enterprise that began when Constable Gordon sought to arrest the appellant and the appellant struggled in seeking to escape. That enterprise was further evidenced by what occurred after the police officer fell to the ground, and was then kicked in the manner described by Mr Bonaddio.

16 Mr Hulme submitted that since the appellant did not strike that first blow, no criminal responsibility for it could be attributed to him, but I do not accept that submission. The jury was entitled to consider the events that had so recently preceded that blow and I consider that, suitably directed, it would have been open to the jury to find that a joint criminal enterprise began at the point of time that the police officer sought to apprehend the appellant and that that enterprise had as its objective to do what was considered to be necessary to free the appellant from arrest and to permit his escape.

17 Hence I consider ground 1 fails.

18 Ground 2 is to be considered against the background of the directions concerning joint criminal enterprise which were given to the jury in the course of the summing up. His Honour first gave this direction, and this in the context of considering the affray count:

“But the Crown also relies, and this is referred to I think by both Mr Crown and by Mr Hogan for the defence, on a concept of law called a joint criminal enterprise. And on that I put the following before you. The law is that when two or more persons carry out a joint criminal enterprise each is responsible for the acts of the other or others in carrying out that enterprise. In order to rely on this the Crown must establish both the existence of that joint criminal enterprise the participation in it by the accused. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. This understanding or arrangement need not be expressed, that is, it need not have been made by words spoken. Its existence may be inferred from all the circumstances. The agreement need not be reached before the crime was committed; in other words, they need not say to one another ‘Let’s go and commit a crime’. The agreement or understanding can arise almost simultaneously with the commission of the crime. It can be instantaneous. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit the crime. A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime was committed, and, with the knowledge that the crime is to be or being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit the crime. The presence of that person at the time when the crime was committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participants in the joint criminal enterprise to commit the crime. If the agreed crime is committed by one or other of the participants in that joint criminal enterprise all the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission. That concept applies to count 1, it also applies to count 4 and 5. And the direction I have just given you you should bear in mind in relation to that.”

19 His Honour then proceeded to give instruction as to the first count and to relate the direction on joint criminal enterprise to that count (SU 16-17):

“As far as count 1 is concerned the Crown contends that it was the accused who stood in the doorway of the train and said to Mr Murphy ‘Don’t get on the train, fuck off’, and you heard Detective Gordon’s evidence that this person also had his arm across to a bar on the train, and I have referred to that. If you are satisfied beyond a reasonable doubt that was the accused who did these acts, then you turn to consider whether they establish the essential elements of the offence of affray.
The Crown also contends another person in the train said to Mr Murphy, ‘Do you want a punch in the head’. If you are satisfied that at the time this was said the accused was acting in pursuit of a joint criminal enterprise with the other person, then you can take the actions of them together in determining whether the essential elements of the affray have been established.”

20 His Honour returned to the concept of joint criminal enterprise when giving instruction about counts 4 and 5. In this context his Honour did not give what was referred to in R v Tangye (1997) 92 A Crim R 545 as “a straightforward joint criminal enterprise” direction, such as he had given for count 1, but a direction on the “extended concept of joint criminal enterprise”, also identified in Tangye. What Hunt CJ at CL said in Tangye at 556 merits repetition here:

“The Crown needs to rely upon a straightforward joint criminal enterprise only where – as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed.”

21 Having regard to what I understand to have been the basis for the rejection of the no case application, the instruction on the extended concept was unnecessary for the consideration of the Crown case on that basis. Nevertheless, the instruction given concerning counts 4 and 5 was as follows (SU 30):

“Now members of the jury I indicated earlier, as far as counts one, four, and five, were concerned, the Crown also relies on the concept of joint criminal enterprise and I have given you a general direction to that.
What I now propose to do is give you a further direction as far as count four and five are concerned, and that is as follows. Where instead of a crime previously agreed, another crime is committed by one or others of a party to that joint criminal enterprise. 2) or played some part in committing the other crime, and 3), where the Crown has established that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime, all parties are equally guilty to that other crime regardless of the part played by each in its commission. It does not matter that the crime committed does not correspond in every detail to that contemplated by the parties. What must be contemplated by the parties is a substantial risk, not merely of a slender chance that it will be committed. The Crown case here is that a person other than the accused landed the initial punch upon Detective Gordon. Unless you are satisfied beyond reasonable doubt that it was not this punch that caused the injury to Detective Gordon’s cheek, you can only convict the accused of this count if you are satisfied that such a blow was within the contemplation of the accused in the commission of another joint criminal enterprise to which he was a party, namely, the affray, which is the subject of count one. If you are satisfied beyond reasonable doubt that the accused was part of a joint criminal enterprise to commit the offence of affray, unless you are also satisfied that it was within his contemplation that an assault such as that committed upon Detective Gordon was a possible incident of the affray, you could not convict him of maliciously inflicting grievous bodily harm on Detective Gordon, which is of course the charge in count number four .”
(Emphasis added)

22 The jury asked for further instruction during the course of considering its verdict, and the judge more or less repeated the directions earlier given. I record for completeness what was said at this late stage of the jury’s instruction (SU 70):

“As far as your question was concerned, that is the first question you sent to me, which I have marked as MFI 16, the second question being MFI 17. The question reads,
‘During the giving of instructions to the jury you made reference to a link between counts 1, 4 and 5. We are seeking clarification as to legal principles to apply when considering evidence for these charges.’
What I propose to do in relation that question members of the jury is to read out exactly again what I said yesterday to you, perhaps a little slower, if I was reading a bit too quickly.
You will remember that I first dealt with the facts in relation to the first charge. I said as follows. It is on these facts that I have briefly described to you that the Crown relies. The Crown also relies, and this is referred to I think by both Mr Crown and Mr Hogan for the defence, on a concept of law called joint criminal enterprise. On that, I put the following before you. The law is that when two or more persons are carrying out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise.
In order to rely on this the Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. This understanding or arrangement need not be expressed. That is, it need not have been made by words spoken. Its existence may be inferred from all the circumstances. The agreement need not be reached before the crime was committed. In other words, they do not need to say to one another ‘Let’s go and commit a crime’. The agreement or understanding can arise almost simultaneously with the commission of the crime. It can be instantaneous.
The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit the crime.
A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime was committed, and with the knowledge that the crime is to be or being committed, by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit the crime. The presence of that person at the time when the crime was committed, and a readiness to give aid if required is sufficient to amount to encouragement to other participants in the joint criminal enterprise to commit the crime.
If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all the participants in that enterprise are equally guilty of the crime, regardless of the part they played in its commission. That concept applies to count 1, it also applies to count 4 and 5, and you have already made that link in your own minds. I did not say that yesterday but I am saying it to you now.”

23 His Honour continued (SU 72):

“As far as count 1 is concerned, the Crown contends that it was the accused who stood in the doorway of the train and said to Mr Murphy, ‘Don’t get on the train, fuck off.’ and you heard Detective Gordon’s evidence that this person also had his arm across to a bar on the train, and I have referred to that.
If you are satisfied beyond reasonable doubt that it was the accused that did these acts, then you turn to consider whether they establish the essential elements of the offence of affray. The Crown also contends another person on the train said to Mr Murphy, ‘Do you want a punch in the head?’ If you are satisfied that at the time this was said the accused was acting in pursuit of a joint criminal enterprise with the other person, then you can take the actions of them together in determining whether the essential elements of the affray have been established.”

24 The judge then gave a further direction in relation to counts 4 and 5 in these terms (SU 73):

“Now members of the jury, I indicated earlier, as far as counts 1, 4 and 5 are concerned, the Crown also relies on the concept of joint criminal enterprise and I have given you a general direction as to that. What I now propose to do is give you a further direction as far as count 4 and 5 concerned, and that is as follows.
Where instead of a crime previously agreed, another crime is committed by one or others of a party to that joint criminal enterprise or played some part in the committing of the other crime and, where the Crown has established that the parties to that enterprise had contemplated the other crime as a possible incident in the execution of the agreed crime, all parties are equally guilty to the other crime, regardless of the part played by each in its commission. It does not matter that the crime committed does not correspond in every detail to that contemplated by the parties. What must be contemplated by the parties is a substantial risk, not merely of a slander chance, that it will be committed.
The Crown case here is that a person other than the accused landed the initial punch on Detective Gordon. Unless you are satisfied beyond reasonable doubt that it was not this punch that caused the injury to Detective Gordon’s cheek, you can only convict the accused to this count if you are satisfied that such a blow was within the contemplation of the accused in the commission of another joint criminal enterprise of which he was a party, namely the affray, which is the subject of count 1 .”
(Emphasis added)

25 There has been no challenge to the directions as to principle which his Honour gave the jury on the concept of joint criminal enterprise. However, whilst his Honour told the jury that the direction as to joint criminal enterprise given on count 1 applied to count 4 as well, the last direction the jury received in relation to count 4 required the jury to apply the directions concerning the extended concept of joint criminal enterprise. The jury was directed that it had to be satisfied that the blow to Constable Gordon was within the contemplation of the appellant in the commission of the affray the subject of count 1. The expression of that count was as follows:

“For that he on 19 September 2001 at Sydney in the State of New South Wales did threaten unlawful violence towards Donald Murphy by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety.”

26 The above expression defined the affray as relating only to the events that occurred in the railway carriage, and the directions his Honour gave to the jury in relation to count 1 were altogether appropriate to the language of that count. What happened subsequently on the station platform was not part of that affray the subject of count 1.

27 Mr Hulme submitted that it was unreasonable for the jury to have convicted the appellant on count 4 because it could not have been satisfied beyond reasonable doubt that the punch did not cause the injury to the police officer’s cheek, and it could not reasonably have concluded that that blow was within the contemplation of the appellant as a possible incident of the commission of the affray inside the train.

28 These submissions were made concerning the evidence:

(i) Senior Constable Gordon was struck “quite a heavy blow” to the side of his face whilst still on his feet and the jury should have been satisfied beyond reasonable doubt that this is what caused his injury.

(ii) There was no evidence upon which the jury could be satisfied that the appellant contemplated an assault such as was committed upon Constable Gordon in the striking of that blow was a possible incident of any joint criminal enterprise involved in the affray.

(iii) Even if it was possible for such an assault to be regarded as an incident of the affray, there is no evidence to support an inference that this was within the appellant’s contemplation.

29 I should observe that the appellant gave no evidence at this trial.

30 The Crown submitted that in giving the extended joint criminal enterprise direction in relation to count 4, the trial judge in effect “set the bar” unduly high, and I consider there is merit in that submission. Nevertheless, the jury was required to apply his Honour’s directions, and whilst his Honour had earlier in his summing up told the jury that the directions on count 1 applied also to count 4, no joint criminal enterprise was identified for the consideration of the jury other than the affray within the train. His Honour did not instruct the jury that it was open to it to find a second joint criminal enterprise on the station platform, commencing when the police officer sought to apprehend the appellant. Accordingly, it seems to me that the jury’s verdict on count 4 has to be considered in the setting of the extended concept of joint criminal enterprise upon which it was instructed, and hence relating to the affray within the carriage.

31 It was submitted by the Crown that the verdict of the jury was nevertheless supportable. The evidence established these five men were looking for trouble when they stood in the vestibule of the train obstructing access, and in the words of Mr Murphy when he observed them: “They just looked like they were looking for a fight.” One of the appellant’s companions threatened to punch Mr Murphy in the head before he left the train. The appellant did in fact punch Mr Murphy after he and his companions left the train and this he did in front of railway officials. Hence the Crown submitted, against the facts that had emerged before the jury, it was open to them to conclude that what happened to the police officer was within the appellant’s contemplation as a possible incident of the affray.

32 I have concluded that the verdict, considered in the context of the instruction as to extended joint criminal enterprise last given on count 4, cannot be maintained. The jury could not reasonably have concluded beyond reasonable doubt that the punch first sustained by the police officer did not cause the injury to his face even though further injury may have been suffered when he was subsequently kicked. Further, it does not seem to me that it was reasonably open to the jury to conclude that the infliction of that blow was within the contemplation of the appellant as a possible incident of the affray that occurred on the train.

33 The Crown submitted that even if the Court came to the conclusion I have reached, the case is one for the application of the proviso in s 6 of the Criminal Appeal Act. I do not accept this submission. Whilst, in my opinion, it would have been open to the jury to find the appellant guilty on the basis of a straightforward joint criminal enterprise, I do not think it could be said that the appellant would have had no chance of being acquitted. The jury was not instructed to consider a case so presented and the operation of the proviso is not warranted.

34 In my opinion, the appeal in respect of the conviction in relation to count 4 should be allowed and the conviction and sentence in relation thereto should be quashed. I would order a new trial because the ruling on the no case submission was based upon the Crown case as presented and the appellant subsequently gave and called no evidence. Hence, I propose the following orders:

1. That the appeal against conviction on count 4 be upheld;

2. That the conviction and sentence relating thereto be quashed;

3. That there be a new trial in relation to count 4.

35 JAMES J: I agree.

36 DUNFORD J: I agree with Studdert J.

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Last Modified: 04/08/2004